400 U.S.

23
91 S.Ct. 112
27 L.Ed.2d 122

Eddie ODOM
v.
UNITED STATES.
No. 300.
Nov. 9, 1970.
Rehearing Denied Dec. 21, 1970.

See 400 U.S. 984, 91 S.Ct. 363.

PER CURIAM.

A writ of certiorari was granted in this case on June 22, 1970, 399 U.S. 904, 90
S.Ct. 2203, 26 L.Ed.2d 559, limited to the question of the retroactivity of our
decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d
656. Since the granting of the writ there has come to the attention of the Court
an order of Judge McRae of the United States District Court for the Middle
District of Florida, dated July 1, 1970, denying a motion of petitioner Odom to
set aside his second sentence as illegally imposed under Pearce, supra. The
order makes it clear that the greater severity of the second sentence was based
on conduct on the part of the petitioner occurring after the time of the original
sentencing proceeding, and that the new information was specifically referred
to at resentencing. Since it is now apparent that this case does not present the
issue of the retroactivity of North Carolina v. Pearce, supra, the writ is
dismissed as improvidently granted.

Writ dismissed.

Mr. Justice DOUGLAS.

The question is whether North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072,
23 L.Ed.2d 656, should be retroactive. In that case we said that 'the factual data
upon which the increased sentence is based must be made part of the record, so

that the constitutional legitimacy of the increased sentence may be fully

reviewed on appeal.' Id., at 726, 89 S.Ct. at 2081. The information now
reported to us by the District Court was never made a part of the record. Hence
an issue of retroactivity of Pearce is present and I would decide the case on the
merits.